ACA in the Supreme Court Catch-All

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I figured I'd post a thread to encourage comments on the upcoming arguments for and against the Affordable Care Act. Here are some materials to start us off. Please feel free to add more. Please note, though - this thread is about a Supreme Court decision. It's not simple, it's not able to be summarized in one convenient soundbite. If you are tldr about this stuff, and things get hot, it's not because I (and presumably others to follow) didn't give you enough to read to understand the basics from both sides. Caveat lector.

A source on why this wound up being an issue and not a slam dunk: the 'individual mandate' wording that would mean Obama hadn't technically broken his campaign pledge, but which is causing the problem now:

All this hemming and hawing occurs for a reason: It does, in fact, matter whether we call the fine a fee or a tax, especially when it comes to health care. First and most obvious is the politics. During the campaign, Obama promised not to raise taxes on the middle class, which he has since defined as any household making less than $250,000 a year. If his opponents can successfully paint the individual mandate as a tax hike that falls squarely on the middle class, they can then bust out their other favorite three-letter word. Played right, this strategy could make Obama look like the second coming of George H.W. Bush.

Ooh, that last link has some really good bits, too. Not all the way through it yet, but:

MARTIN: That was going to be next question, that the Obama administration has argued that the laws regulating interstate commerce in the Constitution do give it that authority. You just say, they're just wrong.

CANNON: It does not because the words regulate commerce among the states, which appear in the Constitution presumes that that commerce already exists. It does not give Congress the power to create commerce where none existed. And if the Supreme Court were to uphold this unprecedented and really breathtaking assertion of government power, there would be nothing to stop the Congress from forcing Americans to purchase any private product that Congress chose to favor.

That could be a gym membership. That could be stock in Exxon Mobil. That could be broccoli, if Congress decided that any of these products move in interstate commerce and that forcing you to buy it was essential to the regulatory scheme they wanted to enact.

Or, now that the government owns a bunch of GM, they might think it was a very good idea to compel the purchase of automobiles, no?

That link sums up my central issue with it. If the Commerce clause gives the government power to force people into commerce, that means they can do anything, that there is no substantive limit on what can be decreed by the representatives currently in government. It trumps all idea of property rights, or the ability to handle your financial affairs how you wish.

I'd be okay with it if you had to engage in a commercial transaction in order to gain a benefit -- if, for instance, hospitals were not required to care for you unless you had insurance, but insurance was available to anyone by law, then it'd be fine.

But the whole 'you must enter into a contract with another party or we will punish you' is completely antithetical to the claim that this is a free country.

From that link:

In 1799, South Carolina’s highest court held: “So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse such contracts. . . . Contracts to be binding must not be made under any restraint or fear of their persons, otherwise they are void.” Throughout the life of this nation it has been understood that for a contract to be valid, the parties to it must mutually assent to its terms — without duress.

That argument, right there, is enough for me to call the measure unconstitutional.

Oh, and there's a good bit on my first issue, too:

Also, the Supreme Court in Commerce Clause cases has repeatedly recognized, and Congress has never before ignored, the difference between the regulation and the coercion of commerce. And in its 10th Amendment cases (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”), the court has specifically forbidden government to compel contracts.

(long snip)

Hence “the power to regulate commerce does not include the power to compel a party to take title to goods or services against its will.” And if it is beyond Congress’s power to commandeer the states by compelling them to enter into contracts, it must likewise be beyond Congress’s power to commandeer individuals by requiring them to purchase insurance.

No matter how much good it might do, Congress does not have the power to do this. The ACA would require a Constitutional amendment, not a mere law, to pass muster.

This is the argument that persuaded the two members of the three-judge panel of the Atlanta-based United States Court of Appeals for the 11th Circuit who voted to invalidate the mandate. The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

“No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk.” So said Judge Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit in an opinion last summer that rejected a separate challenge to the law. Judge Sutton’s high visibility as a star among a younger generation of Republican-appointed federal judges made his opinion particularly notable. The government’s main brief quotes him at least six times, by my count.

The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity.

The self-serving circular irony of this argument cannot be overstated. The government forces hospitals to give uncompensated care to those who are willfully or helplessly uninsured or can't pay, then claims that the government can force people to purchase health insurance based on the economic activity the government forcibly induced with previous laws.

The uninsured don’t exist apart from commerce.

Which misses the entire point of the counter-argument. No one exists apart from commerce. If the government can force people into contracts with other private parties, then there are no effective limits to the government's power. This question has come up in lower courts, and the government has not been able to give an example of what the government couldn't do under this unlimited interpretation of the commerce clause. Force people to buy broccoli? The government has already argued yes on that one. Shop at a particular chain of groceries? Buy a Chevy Volt? Adopt a kid? Get married? Have children? Kill themselves? All of these things have an effect on commerce, and under the government's argument, would be perfectly Constitutional and legal.

If this is ruled Constitutional by the Supreme Court, most of the rest of the Constitution will be voided.

"The ultimate result of shielding men from the effects of folly is to fill the world with fools." Herbert Spencer, State-Tamperings with Money and Banks

The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity.

Aetius covered this, but the only reason there's uncompensated consumption of health care is because of a government mandate. So the government created the problem in the first place, and now it argues that only a vast expansion of its own power can fix it?

How about just removing the requirement that hospitals provide healthcare to the uninsured?

and the government has not been able to give an example of what the government couldn't do under this unlimited interpretation of the commerce clause.

It's also worth pointing out that following the Constitution means we won't always get ideal outcomes. But if we can just throw it out the window whenever it means something we don't like, we don't have a Constitution at all.

If you want mandated private insurance, the way it's presently structured, you either need a Constitutional amendment, or a Supreme Court that has lost its collective mind and willingness to restrain government assertion of power.

This is the argument that persuaded the two members of the three-judge panel of the Atlanta-based United States Court of Appeals for the 11th Circuit who voted to invalidate the mandate. The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

Wait, wouldn't people who eat brussel sprouts and take the bus be in commerce whether they like it or not too just like those without health insurance?

It sounds like if they had just made a single payer government run system to begin with then this wouldn't be a question, right?

Also, didn't Massachusetts already have a required healthcare law? Or was that ok because it was a state requirement, not a federal one?

That's pretty much the story on both counts: single payer would have been nothing more controversial than "Medicare for All" and the states have greater constitutional power over the lives of their people, at least when it comes to this kind of situation.

One thing that is always brought up as a point against the ACA is the increased wait time for doctors. Doesn't that just mean you have to wait because people are receiving the health care they need? That seems like a pretty dickish complaint. Or is there another reason for the increased wait time?

An interesting selection of 5 expert opinions from 2010 on whether the law is constitutional. One interesting argument - because you don't have to purchase the insurance, the mandate is not actually a mandate. It's a tax.

Obviously, that debate will be an important part of the arguments, since if it *is* simply a tax, it's a slam-dunk for the government (the government can pass taxes to benefit the population; it's hard to argue that health care is a not a benefit to the population). This puts the Republicans in the position of arguing that it's *not* a tax, and the government that it is; the precise opposite of the arguments made by the parties in the run-up to the bill's passage, when the Republicans painted it as history's largest tax and the Democrats argued that it was just another application of the Commerce Clause, to benefit everyone.

Edit - A good explanation of where I'm placing my bet. Not sure about the 8-1 prediction, but I find the reasoning hard to counter. If someone wants to take a swing at it, feel free. But refrain from speculating about my thoughts or beliefs, please.

There's no materials safety sheet for astatine. If there were, it would just be the word "NO", scrawled over and over again in charred blood. - Randall Munroe

Edit - A good explanation of where I'm placing my bet. Not sure about the 8-1 prediction, but I find the reasoning hard to counter.

Here's the reasoning I have an issue with, and it's the same as the Linda Greenhouse reasoning:

Opponents of the health care law say that if it is upheld then the government can force people to buy an American car or to eat broccoli. But a person can opt to not drive or not to eat vegetables; no one realistically can opt out of health care.

Driving and vegetables? Sure, but no one can realistically opt out of transportation or eating. Just like eventually a person is going to purchase health care services, at some point a person is eventually going to purchase a bus ticket instead of a car or a steak instead of broccoli.

Aetius covered this, but the only reason there's uncompensated consumption of health care is because of a government mandate. So the government created the problem in the first place, and now it argues that only a vast expansion of its own power can fix it?

How about just removing the requirement that hospitals provide healthcare to the uninsured?

EMTALA applies to "participating hospitals." The statute defines "participating hospitals" as those that accept payment from the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) under the Medicare program. However, in practical terms, EMTALA applies to virtually all hospitals in the U.S., with the exception of the Shriners Hospitals for Children, Indian Health Service hospitals, and Veterans Affairs hospitals. The combined payments of Medicare and Medicaid, $602 billion in 2004, or roughly 44% of all medical expenditures in the U.S., make not participating in EMTALA impractical for nearly all hospitals. EMTALA's provisions apply to all patients, and not just to Medicare patients.

More significantly, though: Do we really want a shift to hospitals providing coverage only to those who are insured? If someone requires emergency care, should a hospital ever [em]not[/em] treat them? Is there any scenario in which someone has no obvious medical coverage or ability to pay (or rather, no [em]proof[/em] of medical coverage or ability to pay) when doctors ought to refuse to treat someone who is obviously in need of emergency medical help?

Opponents of the health care law say that if it is upheld then the government can force people to buy an American car or to eat broccoli. But a person can opt to not drive or not to eat vegetables; no one realistically can opt out of health care.

Driving and vegetables? Sure, but no one can realistically opt out of transportation or eating. Just like eventually a person is going to purchase health care services, at some point a person is eventually going to purchase a bus ticket instead of a car or a steak instead of broccoli.

Also note the subtle assumed equivalence between "health care" and "health insurance", which is used to frame the argument so that it makes opponents appear as if they don't want people to have access to any health care at all. It's obviously possible to obtain at least some health care without health insurance via many different means, and there's also a range of health insurance options; it should be clear that getting the health care a person wants or needs is not equal having insurance at the one-size-fits-all government-specified level.

"The ultimate result of shielding men from the effects of folly is to fill the world with fools." Herbert Spencer, State-Tamperings with Money and Banks

Also note the subtle assumed equivalence between "health care" and "health insurance", which is used to frame the argument so that it makes opponents appear as if they don't want people to have access to any health care at all. It's obviously possible to obtain at least some health care without health insurance via many different means, and there's also a range of health insurance options; it should be clear that getting the health care a person wants or needs is not equal having insurance at the one-size-fits-all government-specified level.

The system in the ACA allows you to buy the health insurance you want, from a private company. You don't even have to buy health insurance at all. It's definitely not "one size fits all". The equivalence is not important here; you can have health care without insurance, by paying a tax, or with insurance, by simply buying it from a private provider, yourself, or through your employer.

As to the issue of the commerce clause, what means do you have to procure health care without participating in commerce?

Cheezepavilion wrote:

Here's the reasoning I have an issue with, and it's the same as the Linda Greenhouse reasoning:

Opponents of the health care law say that if it is upheld then the government can force people to buy an American car or to eat broccoli. But a person can opt to not drive or not to eat vegetables; no one realistically can opt out of health care.

Driving and vegetables? Sure, but no one can realistically opt out of transportation or eating. Just like eventually a person is going to purchase health care services, at some point a person is eventually going to purchase a bus ticket instead of a car or a steak instead of broccoli.

So your argument is that the law is akin to the government forcing someone to use transportation or eat food? I'm not sure it retains any power, when widened that way. Everyone uses transportation and eats food, so the government is not adding any additional hardship; instead, it's trying to save everyone money.

There's no materials safety sheet for astatine. If there were, it would just be the word "NO", scrawled over and over again in charred blood. - Randall Munroe

Here's the reasoning I have an issue with, and it's the same as the Linda Greenhouse reasoning:

Opponents of the health care law say that if it is upheld then the government can force people to buy an American car or to eat broccoli. But a person can opt to not drive or not to eat vegetables; no one realistically can opt out of health care.

Driving and vegetables? Sure, but no one can realistically opt out of transportation or eating. Just like eventually a person is going to purchase health care services, at some point a person is eventually going to purchase a bus ticket instead of a car or a steak instead of broccoli.

So your argument is that the law is akin to the government forcing someone to use transportation or eat food? I'm not sure it retains any power, when widened that way. Everyone uses transportation and eats food, so the government is not adding any additional hardship; instead, it's trying to save everyone money.

I think you're losing sight of what the counter-argument is trying to do: it's trying to say that buying health care is something you will wind up doing anyway, unlike buying American cars or broccoli. Thing is, you'll wind up buying transportation or food at some point, just like you'll wind up buying health care at some point. It's not nearly as convincing a counter-argument as these experts believe it to be, and I think the failure of these experts to really grapple with the issue is part of why the controversy has grown. If the experts on one side keep giving crappy answers even to far-fetched questions, it gives legs to an idea that should never have gotten legs at all. Sometimes a bad answer makes a strange question look legitimate.

I think the 'you will need health care someday' factor should only be part of the counter-argument. The argument here is that the Commerce Clause only empowers the government to regulate action, not inaction: could the government force a farmer to plant broccoli in an empty field? Instead, the counter-argument should be that it's only a mandate to people already engaging in action, like employment. Not only will that pass muster with the conservatives, but considering what the Founding Fathers thought, Scalia will probably write that part of the opinion himself. Because the ACA has all kinds of provisions to make is so that most of the people who are inactive are covered for free as if this were merely an entitlement program, I think the far stronger counter-argument is that it does not regulate inactivity instead of these weak attempts to deal with the broccoli question.

I think the 'you will need health care someday' factor should only be part of the counter-argument. The argument here is that the Commerce Clause only empowers the government to regulate action, not inaction: could the government force a farmer to plant broccoli in an empty field? Instead, the counter-argument should be that it's only a mandate to people already engaging in action, like employment. Not only will that pass muster with the conservatives, but considering what the Founding Fathers thought, Scalia will probably write that part of the opinion himself. Because the ACA has all kinds of provisions to make is so that most of the people who are inactive are covered for free as if this were merely an entitlement program, I think the far stronger counter-argument is that it does not regulate inactivity instead of these weak attempts to deal with the broccoli question.

I believe, though, that "inactivity" in this case is "not using the service at all", since when you do use it, you have to enter the stream of commerce in some way to get it. I don't think, for example, that you can stop paying your health insurance premium because you have not had a need for it in the past month. If your understanding of inactivity is correct, that would probably be part of the structure of insurance policies.

The idea that people are participating in health care usually begins at birth; after an assisted birth, it's hard to argue that even an infant has not made use of medical services.

There's no materials safety sheet for astatine. If there were, it would just be the word "NO", scrawled over and over again in charred blood. - Randall Munroe

The GAO (Government Accounting Office) just released a report on the lack of pricing transparency on high preference clinical products used for the treatment of cardiac rhythm management. In a nutshell, Medicare spends $20 BILLION annually on these devices and audits have shown massive discrepancies in the prices paid. You can bet your co-pay that if Uncle Sam spends $20B on something there's going to be some reform and flattening of the pricing.

Reform is coming, the government wants it, insurers are demanding it and patients deserve it. How it's implemented is largely a political issue but it's coming.

“When I discovered a new plant, I sat down beside it for a minute or a day, to make its
acquaintance and hear what it had to tell.” -- John Muir

I think the 'you will need health care someday' factor should only be part of the counter-argument. The argument here is that the Commerce Clause only empowers the government to regulate action, not inaction: could the government force a farmer to plant broccoli in an empty field? Instead, the counter-argument should be that it's only a mandate to people already engaging in action, like employment. Not only will that pass muster with the conservatives, but considering what the Founding Fathers thought, Scalia will probably write that part of the opinion himself. Because the ACA has all kinds of provisions to make is so that most of the people who are inactive are covered for free as if this were merely an entitlement program, I think the far stronger counter-argument is that it does not regulate inactivity instead of these weak attempts to deal with the broccoli question.

I believe, though, that "inactivity" in this case is "not using the service at all", since when you do use it, you have to enter the stream of commerce in some way to get it. I don't think, for example, that you can stop paying your health insurance premium because you have not had a need for it in the past month. If your understanding of inactivity is correct, that would probably be part of the structure of insurance policies.

Sure, if people had health insurance to begin with, but that's a catch-22: if the person has health insurance, then they are active in health insurance commerce in the first place. We're talking about people without health insurance here.

The idea that people are participating in health care usually begins at birth; after an assisted birth, it's hard to argue that even an infant has not made use of medical services.

I'm not sure that idea that if you participated before you were a legal adult means you're an active participant in commerce after that is going to be a great argument when it comes time for someone to ask if the government can force you to eat your broccoli ; D

Instead, the counter-argument should be that it's only a mandate to people already engaging in action, like employment.

The flaw in that argument is that the mandate doesn't work that way. The penalty is assessed based on not purchasing health insurance from a government-authorized vendor, not employment status or any other status. It is very clearly based on inaction of a specific kind. That the penalty may not be assessed due to a citizen's particular exemption doesn't grant the government the power to assess the penalty on everyone.

Robear wrote:

The idea that people are participating in health care usually begins at birth; after an assisted birth, it's hard to argue that even an infant has not made use of medical services.

Participating in the health care market, certainly. Participating in the health insurance market, not necessarily. Participation in the health care market can take all kinds of forms, only some of which necessarily involve health insurance. The assumption made by the PPACA is that there is only one way to get health care, and that is to have health insurance that offers a certain minimum level of services. Hence my comment about one-size-fits-all - under PPACA, there is only one way to do things, and everyone will do it, or pay the price.

"The ultimate result of shielding men from the effects of folly is to fill the world with fools." Herbert Spencer, State-Tamperings with Money and Banks

Instead, the counter-argument should be that it's only a mandate to people already engaging in action, like employment.

The flaw in that argument is that the mandate doesn't work that way. The penalty is assessed based on not purchasing health insurance from a government-authorized vendor, not employment status or any other status. It is very clearly based on inaction of a specific kind. That the penalty may not be assessed due to a citizen's particular exemption doesn't grant the government the power to assess the penalty on everyone.

This wouldn't be any different from requiring people to purchase Social Security Insurance with FICA taxes. If you're not earning any employment income or engaging in some other kind of activity that earns money, it's hard for me to imagine a case where the government doesn't just subsidize your purchase of health care insurance under the ACA. Which means you're not being compelled to purchase something, you're being compelled to sign up for a government entitlement program.

This wouldn't be any different from requiring people to purchase Social Security Insurance with FICA taxes. If you're not earning any employment income or engaging in some other kind of activity that earns money, it's hard for me to imagine a case where the government doesn't just subsidize your purchase of health care insurance under the ACA. Which means you're not being compelled to purchase something, you're being compelled to sign up for a government entitlement program.

There's two significant differences:

1) the PPACA mandates that everyone buy insurance from a set of government-approved private 3rd parties
2) if you don't comply, you are fined.

A rough Social Security equivalent would be mandating the purchase of a 401(k) from a set of government-approved vendors such as Morgan Stanley or Goldman Sachs, and fining anyone who didn't buy one. Indeed, the supporting arguments for such a program would be almost exactly the same. After all, everyone is going to retire at some point, and if they don't have the money to retire the taxpayer will likely pick up much of the tab (food stamps, etc).

(Also note that Social Security benefits from the fact that it is not actually insurance - it's an entitlement program that is tax funded. It was ruled long ago that citizens do not actually have Social Security assets, but merely a promise of payment.)

"The ultimate result of shielding men from the effects of folly is to fill the world with fools." Herbert Spencer, State-Tamperings with Money and Banks

This wouldn't be any different from requiring people to purchase Social Security Insurance with FICA taxes. If you're not earning any employment income or engaging in some other kind of activity that earns money, it's hard for me to imagine a case where the government doesn't just subsidize your purchase of health care insurance under the ACA. Which means you're not being compelled to purchase something, you're being compelled to sign up for a government entitlement program.

There's two significant differences:

1) the PPACA mandates that everyone buy insurance from a set of government-approved private 3rd parties
2) if you don't comply, you are fined.

A rough Social Security equivalent would be mandating the purchase of a 401(k) from a set of government-approved vendors such as Morgan Stanley or Goldman Sachs, and fining anyone who didn't buy one. Indeed, the supporting arguments for such a program would be almost exactly the same. After all, everyone is going to retire at some point, and if they don't have the money to retire the taxpayer will likely pick up much of the tab (food stamps, etc).

(Also note that Social Security benefits from the fact that it is not actually insurance - it's an entitlement program that is tax funded. It was ruled long ago that citizens do not actually have Social Security assets, but merely a promise of payment.)

I don't think those differences are significant when the question is "can the government fine you for inactivity?"

Sure, if people had health insurance to begin with, but that's a catch-22: if the person has health insurance, then they are active in health insurance commerce in the first place. We're talking about people without health insurance here.

I was talking about whether something was legal under the Commerce act. The issue is, is health insurance part of the interstate commerce subject to the clause? I think that it is. If it is, it can be regulated.

The broccoli argument is particularly misplaced. No one is saying that you have to buy a particular level or type of insurance. You don't even have to participate; you just will probably be better off financially if you do.

There's two significant differences:

1) the PPACA mandates that everyone buy insurance from a set of government-approved private 3rd parties
2) if you don't comply, you are fined.

The government does not approve the private insurers. It instead states that insurers must offer packages with certain features. This is also true for any government plans. Insurers can offer a huge variety of options - it's not at all "one size fits all", not in any way.

H.R. 3962 would require private insurance plans and the public health insurance option to adhere to a set of standards:[1]

Guaranteed renewal of insurance
Guaranteed acceptance, regardless of a person's current health or health history.
A cap on out-of-pocket costs
Allow the use of affordability credits so that those with (sudden or long-term) lower incomes can afford insurance
Competition in the market place and efficiency requirements for private plans to bring the cost of premiums down

It also requires that the public plan be national - available everywhere in the United States.

So you can get the equivalent of today's catastrophic insurance, or high-risk, or premium, or whatever, at the cost points that the *companies* deem profitable within the rules.

If you choose not to buy insurance, you are fined, yes. But you have not broken a law unless you don't pay the fine. You could choose to pay the fine, and pay for health care out of pocket. It's your call.

There's no materials safety sheet for astatine. If there were, it would just be the word "NO", scrawled over and over again in charred blood. - Randall Munroe